Following on from our recent webinar on Preparing for Brexit, the Government has now published some much awaited details on the operation of the new Points-Based Immigration System from 1 January 2021 in its first in-depth guidance document on the subject. The guidance, entitled The UK's Points-Based Immigration System: Further Details, includes an overview of the requirements and conditions for each of the main economic migration routes (as well as those for students and visitors), an explanation and case examples of how points can be earnt/traded for the skilled work route, and a list of all occupations which will qualify for sponsorship under the new system.
The Government maintains that the new system will be more streamlined, accompanied by simplified rules and guidance, as well as being fairer as it applies equally to migrants from every part of the world.
The Immigration and Social Security Co-ordination (EU Withdrawal) Bill which will form the legal basis of the new system has yet to become law, but the aim of the guidance is to prepare employers and applicants alike for the upcoming changes. The guidance confirms that free movement for EU nationals will end at 11pm on 31 December 2020 and changes will come into force. In particular:
- EU migrants arriving in the UK from 1 January 2021 will be subject to the new immigration system.
- The existing Tier 2 (General) route will be replaced by a new Skilled Worker route. Tier 2 (Intra-Company Transfer) will remain in place (with some adjustments).
- Existing sponsors will automatically be granted a new Skilled Worker licence or Intra-Company Transfer licence and will not need to make a further application. The expiry date will match that of the current licence, and sponsors will receive an appropriate allocation of Certificates of Sponsorship (presumably dependent upon their existing allocation, although this remains to be seen). Existing Tier 2 (General) migrants who need to make a new application following the closure of that route will do so under the Skilled Worker route.
- A key difference between the Tier 2
(General) and the Skilled Worker routes, and one that will be
welcomed by many sectors, is the lowering of the skills level from
degree level (RQF 6) to A-level equivalent (RQF 3), bringing a
number of previously excluded roles within the scope of
sponsorship. This includes:
- In the construction industry, builders, carpenters, welders, plumbers and electricians;
- In the retail and leisure sectors, sales supervisors, sales administrators, warehouse and logistics managers, leisure, sports and travel managers;
- In the food and drink industry, chefs, butchers, bakers and bar/restaurant managers;
- In the health and social care sector, senior care assistants and nursing assistants; and
- A wide range of technicians in various fields such as laboratory technicians, IT technicians, pharmaceutical, medical and dental technicians, photographers and sound engineers.
- The salary threshold for Skilled Workers will be lowered from £30,000 to £25,600 per annum, with new entrants able to enter on a lower salary than their more experienced counterparts, provided it does not dip below the lower floor of £20,480 per annum.
- While there are still certain mandatory criteria for Skilled Workers which will earn an applicant a fixed number of points (namely a job offer with a licenced sponsor, the job meeting the minimum skills threshold and the migrant demonstrating the requisite English language skills), the new system introduces tradeable points for certain attributes such as salary, relevant PhD qualifications and shortage occupation roles.
- The annual cap under the current Tier 2 (General) route will be suspended and employers will no longer have to carry out the Resident Labour Market Test, which, coupled with lower salary and skill thresholds, will potentially make it easier to recruit migrant workers to skilled roles.
- In country-switching will become easier for Skilled Workers, with most migrants (save for those on short-term or visitor visas) able to apply to switch from one immigration route to another without having to leave the UK, provided they meet the criteria of the category they are switching into.
- A specific category of visas for health and social care workers will be introduced as part of the Skilled Worker route.
- Tier 2 (Intra-Company Transfer) will still only be available for roles at RQF Level 6 or above, however the "cooling-off" period rules will be relaxed to allow more flexibility for shorter-term assignments. From 2021, an overseas intra-company transferee must not have held an ICT visa for more than five years in any six-year period, except where they qualify to be granted up to nine years on the basis of their salary.
New features and streamlining aside, the overall system of sponsorship will remain in place and the guidance confirms that some aspects will be largely unchanged save that they will apply to both EU and non-EU citizens from 1 January 2021. For example:
- Application fees will continue to apply under the new system in the same way that they do now.
- The Immigration Skills Charge will continue to be levied on UK employers of Skilled Workers and intra-company transferees on the same basis.
- The Immigration Health Surcharge will still be payable by the majority of overseas migrants coming to the UK for more than 6 months (subject to the anticipated introduction of an exemption for frontline NHS staff).
- Although the Resident Labour Market Test will be abolished, employers will still be expected to recruit for genuine vacancies which meet the prescribed skill and salary thresholds.
- Dependants (spouses, partners, children) will still be able to accompany skilled workers and postgraduate students to the UK.
- Skilled Workers will be required to prove that they can speak English to the required level by way of an English language test, an academic degree taught in English or being a national of a majority English-speaking country.
The visitor and student routes are also expected to remain much as they are with some minor tweaks to improve the process where necessary. The Youth Mobility Scheme, which provides a temporary route for young people from participating countries to work and travel in the UK for up to two years, will also remain in place, with the Government confirming its intention to extend the scheme to other countries (which may well include EU countries).
Travel within the Common Travel Area (United Kingdom, Ireland, the Isle of Man and the Channel Islands) will continue with no changes. Irish citizens will retain their special status and be free to live and work in the UK as they are now, and no additional immigration controls will be introduced at the Eire/Northern Ireland border.
Watch this space
As you might expect, the implementation of the points based system will be phased and this guidance document is likely to be the first of many implementing the Home Office's wider plans up to 2025. So what else can we can expect as part of the UK's fully realised Points-Based Immigration System?
- Further guidance on any updates to the maintenance requirements for migrant workers under the new system is anticipated in the autumn of 2020. The requirements for the main work and study visa categories themselves will be written into the Immigration Rules. These will also be published later in 2020, along with more detailed guidance for applicants.
- The Home Office retains the ability to widen the number of attributes for which tradeable points may be obtained, and they may seek to do so in response to the country's economic needs and pressures.
- Changes are expected to border control procedures for EU nationals, although what these will be will largely depend upon the course and outcome of negotiations on the future EU-UK relationship.
- The Government intends to introduce a universal 'permission to travel' requirement which will require everyone wishing to travel to the UK (except British and Irish citizens) to seek permission in advance of travel. Electronic Travel Authorisations (ETAs) will also be introduced for visitors and passengers transiting through the UK who do not currently need a visa for short stays or who do not already have an immigration status prior to travelling. This aims to allow security checks to be conducted and decisions taken as to whether individuals should be allowed to travel to the UK at an earlier stage.
- An unsponsored graduate route will be launched in summer 2021, giving international students the opportunity to stay in the UK to work or look for work after they graduate. Undergraduate and master's degree students may be granted a non-extendable period of two years' stay under the route, whilst PhD students will be able to stay a maximum of three years (although switching to another route will be possible).
- An unsponsored route for highly skilled workers is expected to be introduced under the points based system in 2022. This will allow for a small number of only the most highly skilled workers to enter the UK without a job offer in place.
What do you need to do now?
If your business already has a sponsor licence under Tier 2 (General) or Tier 2 (Intra-Company Transfer), no new application is required, although you should familiarise yourself with the changes to the rules which may in some cases mean sponsorship is now possible for roles which were previously excluded. You should also check whether you have a sufficient certificate of sponsorship allocation to deal with the potential increased demand from January 2021. Now is also a good time to make sure the existing licence is up-to-date, is held by the correct sponsoring entity, contains correct key personnel details etc, and that all Home Office notification requirements have been met.
If your business doesn't currently have a sponsor licence but thinks it may need to recruit from the EU or beyond from January 2021, the Government is actively encouraging licence applications to be made now. As we get closer to the end of the year, more organisations are likely to be submitting applications which is likely to result in increased processing times, and potential delays to recruitment plans.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.